- (1.) A decree for possession of agricultural land measuring 53 Kanals 4 Marais was passed in favour of Smt. Natho respondent. She took out execution of that decree and by the time execution was to be carried out, consolidations had taken place and new Khasra numbers came into being. Under the orders of the Executing Court, the decree-holder took possession of various Khasra numbers including Khasra No. 8/5/2, on 14th August, 1971. When Mahant Sunder Dass judgment-debtor came to know that Khasra No. 8/5/2 was not allotted in consolidation in lieu of any part of the land covered by the decree, he filed an application on 18th September, 1974, before the Executing Court under sections 57, 144 and 151 of the Code of Civil Procedure (hereinafter referred to as the Code), for restoring the possession of Khasra No. 8/5/2 to him. This application was opposed by the decree holder who raised an objection that the application filed by the judgment-debtor was beyond the period of three years and, therefore, was time barred. Simultaneously the decree holder applied for execution of the decree in regard to Khasra No. 60/24, respecting which actual physical possession had not been delivered to her. Both the matters were considered by the Executing Court together and by order dated 1st January, 1980, the application filed by the judgment-debtor was dismissed as time barred being beyond the period of three years and the execution application of the decree holder was allowed and an order was passed for delivery of actual possession of 60124. Against the aforesaid order the judgment-debtor has come up in revision to this Court.
(2.) After hearing the counsel for the parties, I am of the view that the below was in error in coming to the conclusion that the application judgment-debtor was barred by limitation and the decision of the Court below in that regard deserves to be set aside.
(3.) The question whether a restitution application would he an application for execution or not and whether an application by a judgment debtor in proceedings for execution, discharge and satisfaction of the decree shall be an application covered by execution proceedings or not has been the subject-matter, of controversy in various High Courts but this matter now stands finally a concluded by a judgment of the Supreme Court in Mahijibhai Mohanbhai Barot V. Patel Manibhai Gokalbhai and others, 1965 AIR(SC) 1477 It has been laid down in the aforesaid decision as follow :- "An application for restitution under Section 144, Civil Procedure Code is an application for execution of a decree and, therefore, such application is governed by Article 182, Limitation Act and not by Article 181 of the Limitation Act which is a residuary article of Limitation. "Section 144 defines the powers of the Court and expressly bars the maintainability of a suit in respect of a relief obtainable under this section. The section does not either expressly or by necessary implication change the nature of the proceeding. Its object is limited. It seeks to avoid the conflict and to make the scope of the restitution clear and unambiguous. It does not say that an application for restitution which till the new Procedure Code was enacted, was an application for execution, should be treated as an original petition. Whether an application is one for execution of a decree or is an original application depends upon the nature of the application and the relief asked for when a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution. because the appellate decree enables him to obtain that relief either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie, therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree". The aforesaid passages clearly go to show that an application under section 144 of the Code for restitution was treated as an application for execution and it was held that Article 182 of the Limitation Act, which provided twelve Years' limitation, would apply and not Article 181, which was a residuary article which provided three years' limitation. It may he pointed out that for restitution no specific article was provided in the Limitation Act and if restitution was not to he treated as an application, then Article 181 would have applied and not Article 182. In the present case, the facts are slightly different from the facts of the Supreme Court case. Here there is no reversal by the appellate Court but the decree-holder was given possession of a wrong Khasra number according to the allegation of the judgment-debtor which fact has yet to be determined but, on the face of the application filed by the judgment-debtor it would be a case of either restitution of possession of Khasra No. 8/5/2 which would mean execution in terms of the aforesaid Supreme Court decision or it my be termed as an application for execution under section 47 of the Code and, therefore, will clearly fall under Article 182 of the new Old Limitation Act, equal to Article 136 of the new Limitation Act. The Court below has applied Article 137, which is a residuary article, equal to old Article 181. Therefore, I am of the view that Article 136 applied to this case whereunder the limitation is twelve years, and not Article 137 as the application filed by the judgment-debtor was under section 47 of the Code and the matter of restitution of Khasra No 8/5/2 would amount to proceeding for execution, discharge and satisfaction of the decree.;